California occupational licensing bill picks winners and losers based on their race

California legislators are considering a bill that gives the government the authority to choose winners and losers based solely on their race.

According to the Little Hoover Commission, as of 2016, one in five Californians are required to obtain an occupational license before they are allowed to earn a living in their chosen career field. This creates substantial burden for workers who must jump through hoops and pay for these costly licenses in order to work.

While the authors of AB 2862 recognize the problem with occupational licensing, their solutions do not help to expand equality and opportunity but, rather, inhibit it.

The bill prioritizes black applicants in the issuance of professional and occupational licenses in industries overseen by the Department of Consumer Affairs,  including healthcare professions like medicine, nursing, and therapy.

There is no denying the threat that occupational licensing poses to those wishing simply to provide for themselves and their families. But this is a problem that impacts all individuals regardless of race and warrants solutions that include everyone. Anything less is unconstitutional.

The United States and California Constitutions guarantee to citizens equal protection of the law. The government therefore cannot treat Californians differently based on their race, ancestry, or other protected categories. This remains true even when it comes to the government deciding who to provide occupational licenses to first. The Supreme Court’s decision last summer in Students for Fair Admissions v. Harvard indicates laws like AB 2862 likely would not withstand a legal challenge.

The State should acknowledge, understand, and work not to repeat the historic exclusion of African Americans from the workplace because of government licensure laws. The Constitution, however, only allows the government to use race to remedy specific instances of past discrimination. The bill does not refer to any specific California laws that explicitly exclude African Americans or were drafted with the intention of excluding those workers that must be remedied. If any such laws do exist, they should be ended. And they can be ended without disadvantaging other workers.

Aside from the bill being unconstitutional, it also will not adequately address the root of the problem. Injecting race into an already burdensome licensing system will worsen that system.

Basic trades such as door repair, carpentry, and landscaping require potential entrepreneurs to devote 1,460 days to supervised practice and spend up to thousands of dollars for a license before they can legally work. Licensing requirements reduce minority entrepreneurship. States that require more occupational licenses have lower rates of low-income entrepreneurship.

These barriers should not be lowered for some workers and kept in place for others depending on the race of the worker.

Further, within industries, the representation and outcomes of minority groups may vary, such that prioritizing some over others would not address underrepresentation. For instance, there is a greater percentage of African Americans working in rail transportation than Hispanics (15.4 percent to 11.8 percent) nationwide, yet the latter would not get priority. The same is true nationwide in home healthcare services (26.4 percent to 19.6 percent) and nursing care facilities (27.7 percent and 10.6 percent). Nationally, there is also a greater share of African Americans than Hispanics working in all levels of government.

So, advantaging some broadly in terms of population and industry using stereotypes will not target root causes of licensing disparities and could cause further mistrust in the system. As always, race is a blunt tool for creating opportunity.

There are more effective, race-neutral ways of addressing the occupational licensing problem. One example of much-needed reform that does not focus on race would be reforming the licensing laws to permit those with criminal records to more easily obtain licenses that would help them secure employment and rebuild their lives.

Indeed, the California Reparations Task Force Report recommends the following race-neutral provisions: 1) eliminating or reducing the period in which a prior conviction for a “serious felony” can be held against a person, with certain exceptions; and 2) reducing the requirement that “substantially related criminal convictions” be considered and held against a person, with certain exceptions.

Instead of using race as a proxy for criminal backgrounds, just directly assist those with that background, regardless of race. More importantly, the State should instead focus on expanding opportunities for all Californians, regardless of skin color and ancestry.

Pacific Legal Foundation believes, as the Constitution promises, that every person has the right to equal treatment under the law. By prioritizing race, AB 2862 fails to adhere to the Constitution, along with failing individual Californians burdened by occupational licensing.